MYT Engineering Pty Ltd v Mulcon Pty Ltd [No 2]

In *MYT Engineering Pty Ltd v Mulcon Pty Ltd [No 2]*, the New South Wales Court of Appeal considered a dispute between MYT Engineering Pty Ltd and others (the appellants) and Mulcon Pty Ltd (the respondent). The core of the dispute concerned the interpretation and enforceability of a building contract, specifically relating to the payment of a progress claim and the subsequent termination of the contract.

The Court was required to determine whether Mulcon Pty Ltd had validly terminated the building contract with MYT Engineering Pty Ltd. This involved assessing whether Mulcon had complied with the contractual requirements for issuing a notice of default and whether MYT Engineering had failed to remedy the alleged breaches within the stipulated timeframe. A further issue was whether the progress claim issued by MYT Engineering was valid and payable, and if not, whether this failure constituted a repudiatory breach of contract by MYT Engineering.

The Court reasoned that for a notice of default to be valid, it must clearly specify the nature of the breach and the steps required to remedy it. It found that Mulcon's notice was deficient in this regard, failing to adequately particularise the alleged breaches. Consequently, Mulcon could not rely on this notice to establish a valid termination. Furthermore, the Court held that the progress claim was not payable because it did not comply with the contractual requirements for its submission. However, the Court determined that this non-compliance did not amount to a repudiatory breach by MYT Engineering, as it was a failure to pay a claim rather than a failure to perform work.

Ultimately, the Court found that Mulcon had not validly terminated the contract. The appeal was allowed, and the orders of the primary judge were set aside.